Court may have final say on water call

A priority call on water rights

By Dianne Stallings

dstallings@ruidosonews.com @RuidosoNews on Twitter

Posted:
09/23/2013 08:56:10 AM MDT

Officials with the Carlsbad Irrigation District were advised by the chief counsel of the New Mexico State Engineer's Office to pursue in district court a priority call of water rights on the Pecos River.

In a letter dated Sept. 10, 2013, the CID was directed to follow the procedures established by the district court in the adjudication of the Lower Pecos by an order entered in 1982, according to information from the Pecos Valley Artesian Conservancy District based in Roswell. Pecos Valley district officials take the position that enforcement of priorities on the lower Pecos would work a fundamental injustice on water rights owners in the Roswell Artesian Basin, extending into Lincoln County, and would not result in any benefit to the CID.

A prolonged drought prompted Carlsbad district farmers and ranchers, who normally use surface water while conservancy district members pump groundwater, to call for the state to returned to the basic principle of water distribution in the West that the lands whose owners first used the water have first call on it in times of scarcity.

A summer of better than average rainfall may lessen the pressure, but it is too soon to tell, said Aron Balok, PVACD superintendent,

"We're waiting to see. We don't know yet," he said Wednesday. "We're still seeing what's coming into storage. If we put enough in storage, the problem goes away. We have to wait a while to see. I wouldn't say this gets us out of drought. We spent a long time getting into the drought and we're way behind. This certainly will help."

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Balok may have received his answer Thursday with an announcement that as of Sept. 13, the New Mexico Interstate Stream Commission shut down its augmentation pumping of groundwater to the Pecos River. The commission had been pumping continuously since March 1, 2011 under the terms of the 2003 Pecos Settlement to provide additional water supply for use by farmers in the Carlsbad Irrigation District.

As of Tuesday morning, the Carlsbad Project surface-water supply was more than 110,000 acre feet, available for use by farmers in the Carlsbad Irrigation District. The Interstate Stream Commission's Seven Rivers and Lake Arthur well fields, located within the Pecos River basin, between Roswell and Carlsbad, can remain shut down until at least March 2014, when water supply for the Carlsbad Irrigation District will be reassessed.

The Pecos Settlement was signed in 2003 by the New Mexico Interstate Stream Commission, the New Mexico Office of the State Engineer, the Pecos Valley Artesian Conservancy District, the Carlsbad Irrigation District and the United States through the Bureau of Reclamation.

The state engineer's chief counsel offered his opinion that the procedure established in the 1982 adjudication case would allow priority enforcement on the Pecos to begin in the spring of 2014, Balok said.

District officials agree that the issues raised by the CID priority call must be determined in district court and they said they are confident that with a full hearing on all issues, the CID priority call will be rejected, Balok stated.

During a mayors' summit earlier this year, representatives of Lincoln County and the village of Ruidoso were advised that water from their area never reaches the Pecos and therefore, a priority call on junior water rights would serve no purpose, resulting in a "futile call," which would be one of the issues going to the district court.

"Part of what's at issue is the 'futile call,' which is a foreign concept in New Mexico, and whether the court can cause junior water rights users to curtail their use knowing it cannot benefit senior rights users," Balok said Wednesday.

"I think anything out of the district court will be final and allow some closure to these open-ended issues," he said. "There's been a lot of legal wrangling and bickering on this. If we can't negotiate a compromise, it needs to go to court. We haven't exhausted our attempts to negotiate. I think the (conservancy district) wants to protect senior users, but harming junior users without benefit to seniors doesn't help anyone."